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Important Remarks on the Interpretation of Treaties
1895 Treaty of Shimonoseki
(1) The 1952 Treaty of Peace between the ROC and Japan (also known as the Treaty of Taipei) stipulates in Article 4 that "all treaties, conventions and agreements concluded before December 9, 1941, between Japan and China have become null and void as a consequence of the war." Japan acknowledged that the treaties, agreements and so on between Japan and China as indicated in the Article above mentioned were including all of those concluded between Japan and the Qing Dynasty. Note: Although scholars of Chinese history claim that China was first united under the Qin Dynasty, it is important to note that the maps of early dynasties such as the Qin (221 - 207 BC), the Han (206 BC - 220 AD), the Three Kingdoms (220 -280), etc. do not include Taiwan. Taiwan does not appear on Chinese maps until the latter years of the Qing Dynasty (1644 -1911), and then it was ceded to Japan in 1895.However, clauses regarding territorial cession, reparation provisions, etc. are not affected by a war or by subsequent cancellation of a treaty. This is because once the obligations of territorial cession, reparation provision, etc. have been fulfilled, the relevant clauses in the treaty itself are no longer active. In other words, the cancellation of a treaty only affects those provisions which have not yet been fulfilled in their entirety. Thus the specifications of the 1895 Treaty of Shimonoseki which ceded Taiwan to Japan are in no way subject to "retroactive cancellation." Note: The 1895 Treaty was ratified by the Qing Emperor. Under international law, territorial cession in a peace treaty is considered a valid method for transferring the title of an area. (2) Furthermore, upon the coming into force of the 1895 Treaty, all previous claims of China regarding the ownership of Taiwan and the Pescadores, whether due to history, culture, language, race, geography, geology, war, etc. became null and void. -- excerpted from the Harvard Asia Quarterly, Fall 2004 edition |
Further Commentary
In the United States, as a result of the War of 1812 with Great Britain, much public debate arose in society in regard to whether war affected the continuing validity of treaties, especially clauses specifying territorial cession. A case involving a dispute on this subject matter reached the US Supreme Court in the early 1800s.
After lengthy debate, the Justices held that according to well established principles of the law of nations, and in consideration of the just interpretation of law, " . . . . treaties stipulating for permanent rights, and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war . . . . . "
More importantly, the Justices further held that " . . . . the termination of a treaty cannot devest rights of property already vested under it." In other words, once territorial title vests, it can no longer be susceptible to denunciation or abrogation by a party to the treaty.
It must be stressed that this case was decided based on established principles of international law. The relevant case is: Society for the Propagation of the Gospel v. Town of New Haven, US Supreme Court, (1823).
Also see --
One-China Policy and Taiwan by Y. Frank Chiang
Fordham International Law Journal Vol. 28:1, December 2004
Abrogation of the 1895 Treaty of Shimonoseki ?